AIBU to think that my upstairs neighbour cannot decide to build an extension on my flatroof without my explicit permission?

[BaleOfHay]

London converted terrace. My upstairs neighbour (with whom I share the freehold of the building) has submitted a planning application to build an extension out on to my flat roof. AIBU to think that A) he's a CF, and B) they need my explicit permission for such a build? Surely he can't build on my roof without my permission??

Well for example you can put in a pre app for permission on land you do not own. No point build a piece of land if you have no idea if you would be granted planning for what you want to built.
The law is obviously what would then stop someone building. Just because something would get permission via the planning department obviously doesn’t give you the right to just rock up and build on land you don’t own.

Very difficult to imagine without a diagram. Hint! Hint!

A bathroom is one thing as it follows with what the other flats have already? The proposed terrace would be a worry though.

As others have said, the more important issue is around the freehold and what your deeds say.

It sounds as though there are three owners and you each have an equal share of the freehold?

Generally speaking, if you each hold the freehold in your own names then all three of you will have to agree to let your neighbour build the extension or otherwise he cannot do it.

If the freehold is set up as a company and you each own equal shares of the company then it will depend on what the company documents say as to whether all shareholders need to agree or just a majority.

I would strongly suggest that you concentrate on that rather than worry about planning permission.

However, also read what the lease says for each flat. There may be words to the effect that the freeholder cannot withhold consent "unreasonably".

This is where you need legal advice as to whether objecting to an extension would be "unreasonable" for the reasons you mentioned above.

eg your current extension is not structurally strong enough to support an additional floor above it may very well be reasonable grounds to refuse.

Diagram

@BaleOfHay your recourse would be to take legal action. Ultimately, this would be in the form of an injunction with a costs order against your neighbour making him pay your legal costs. But usually it does not come to that – a strong letter from your lawyer would normally do the trick, threatening an injunction and a hefty costs order if they don’t cease.

I’m not sure if this has already been covered – but have you checked the terms of your deeds and lease? Even if you are a joint freeholder, there should be a separate lease covering your leasehold rights. This will be the first thing that your lawyer will check.

You need to read your deed and leasehold documents. It will probably say that structural changes need to be with agreement of all parties to the freehold. But if that were the case then it’s surprising he has paid for planning without speaking to you to get your legal permission for the build first. So that makes me wonder if he is right and your docs don’t explicitly state both freeholders are required to consent.

Basically, dig out your docs and read them before you do anything else.

No, he has not asked permission.

Planning permission is a separate process. You get get planning permission for something on property you have no connection to. Obviously you wouldn’t be able to build it because it isn’t your land …. Separate issue

What grounds have you given for the objection to the planning application? It's important you mention the overlooking the bedroom as certain types of rooms are protected more than others in this respect. It's also worth mentioning the lack of light and to get the basement neighbour to object separately as well.
However, that only deals with one aspect (ha) of this - you need to know where you stand legally on them building on your roof. Are there any skylights in it?

Are all 3 flat owners also shared owners of the freehold?

Planning is only one permission. He will need building regulations. You cannot get building regulation approval without proper foundations. He just can’t start building off your flat roof - as others have said it will need reinforcement etc.

What does it say in your deeds? What is the defining party wall / line? Planning will want party wall lines identified in the plans. Presumably his party line will run on the rear elevation vertically - does he have any additional space identified / rights to the garden ? Can you upload a picture defining ?

More or less this!

I doubt the flat roof is in either demise. It will probably be owned by the freeholder. If he gets planning permission, he will need to agree the rights to it with the freeholder. As you are 50% the freeholder you can disagree. Obviously if you do agree you will need to come to an agreement on finances and building standards.

I used to live in a large London terrace (Mary Poppins style) which was converted into flats. Owned on share of freehold we ran through a company and we had a managing agent.. Over the years people would want to build into bits, the roof, flat roofs, cellar vaults etc

There's no point in going through ins and outs of talking to the others, getting lawyers and managing agent surveyors involved if you can't get planning permission.

If it were agreed, the flat in question would have their lease updated to include the space in their demise. They would need a licence to alter. They covered all legal fees of course. If there was money involved (when a mansard roof extension built it was significant) they covered the cost of some communal work.

So it would deny you a window and be built directly against your outside wall? Jesus that sounds like a living piss take.
Object strongly. And get other neighbours who you're friendly with on your side to object also.
It sounds preposterous. If anything it should be you who could extend there, not him?

@BaleOfHay I'd be tempted to apply for permission for a lovely terrace on the roof of your bathroom accessed by a spiral staircase in order to overlook their bedroom and bathroom 😂

Can't believe they didn't contact you to discuss it though.

OP this is something you need to get onto and quickly. The permission will be granted based on their answers and you'll be on back foot: you need a properly lawyer who can deal with your planning disputes not a basic through your home insurance

I know it is a pain, and you might not want to spend money - but you must get legal advice soon - perhaps from the solicitor who did the original conveyancing. You need to be 100% certain that you are doing all the right things - and more importantly at the right times. Do not delay.

Also if I'm looking at your diagram correctly is your extension built on top of the basement extension? Your upstairs neighbour may try to argue precedence was set.

That’s not how it works if the space isn’t within the demise of the top floor flat.
The middle flat probably paid a fee to the ground floor flat to build at the same time as them, it was clearly done in agreement and not at all the same as the top flat thinking they can just build where they want.

Often the top flat won’t even own the roof space, although many assume they do prior, and have to pay the other flats to purchase the space before developing.

Also if I'm looking at your diagram correctly is your extension built on top of the basement extension? Your upstairs neighbour may try to argue precedence was set.

Adding another extension on top of an existing extension would be doubling the weight on the foundations, and putting weight on the existing (ie the OP's) extension, which may not have been built to take something on top of it.

Ignore the planning application. Dispute it through your leasehold/freehold agreement. It’s a civil matter rather than a planning law matter.

Put simply, your neighbour would be trespassing on your property. Regardless of whether the building can structurally withstand the weight of his extension, the has no right of support from your property and therefore can not build on it. If he gets planning permission (which he may) then you have get an injunction to stop any building work. This idea is a non starter and you will win.

That flat roof is land. If it's demised to you on your leaseplan, it's your land.

If it's not demised to you, then it's the freeholder's land, (in this case you and the neighbour are the freeholder, so you would jointly own this land).

Assuming the latter situation, your neighbour would have to pay the market price for this land in order to build on it (you'd get half). Your neighbour would also need your consent.

If the extension were to go ahead, there would have to be a Party Wall Agreement. The neighbour would have to pay the costs of both yours and his PW surveyors. The extension would also need the approval of Building Control, to ensure that it is safe.

But none of this will happen if you refuse consent for the extension.

That is the basic position, but you do need to get legal advice and get a solicitor to spell it out to the neighbour.

I think this is the bit of the lease that staters he needs my prior written consent

It's certainly still the case in London?

That looks as though you've done the exact thing that you're scandalised your upstairs neighbour now wants to do??
Am I wrong?

The last bit looks promising " not to alter...or overload...any walls or ceilings... " - and that bit doesn't look conditional on getting your permission - it looks like it's just not allowed - share that part with the lawyer.